Exhibit 10.1.15
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of February 10, 2004 (this "Agreement"),
to the Amended and Restated Credit Agreement, dated as of May 1, 1998 (as
heretofore amended and supplemented and as it in the future may be amended,
modified or supplemented from time to time in accordance with its terms, the
"Credit Agreement"), by and among Millbrook Distribution Services Inc., a
Delaware corporation ("Millbrook"), The B. Manischewitz Company, LLC, a Delaware
limited liability company ("Manischewitz" and, together with Millbrook, the
"Borrowers"), the lenders (the "Lenders") named in Schedules 2.01(a) and 2.01(b)
to the Credit Agreement, JPMorgan Chase Bank, as administrative and collateral
agent (in such capacity, the "Agent") for the Lenders, and Bank of America,
N.A., as co-agent and documentation agent.
WHEREAS, the parties hereto have agreed to amend certain provisions of
the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
legal sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendments to Credit Agreement. Effective as of the date all of the
conditions to effectiveness set forth in Section 3 hereof are satisfied, the
Credit Agreement is hereby amended as follows:
(a) The definition of "EBITDA" appearing in Section 1.01 of
the Credit Agreement is hereby amended by deleting the proviso at the
end thereof and substituting therefore the following proviso:
"; provided, however, that for the purposes of determining
EBITDA for the period ending December 31, 2003, EBITDA
shall be increased by the amount of any dividend or
distribution by the Borrowers to Holdings or Enterprises
to enable Holdings to pay the reasonable professional
fees, costs and expenses (including, without limitation,
all legal, accounting and consulting fees, costs and
expenses) incurred by an investor and/or its affiliates
(collectively, the "Investor") in connection with the due
diligence, examination, review, documentation, negotiation
and/or closing of a potential equity investment in
Holdings by the Investor, up to an aggregate amount of the
lesser of (i) $1,000,000 or (ii) the total of such
reasonable professional fees, costs and expenses actually
incurred by the Borrowers."
(b) The definition of "Final Maturity Date" appearing in
Section 1.01 of the Credit Agreement is hereby amended by deleting the
date "October 28, 2004" appearing therein an substituting therefore the
date "January 15, 2005".
2. Representations and Warranties. The Borrowers hereby represent and
warrant as of the date hereof as follows (which representations and warranties
shall survive the execution and delivery of this Agreement):
(a) All representation and warranties made by the Borrowers in
Article IV of the Credit Agreement and each of the other Loan
Documents, after taking into account the effect of this Agreement, are
true and correct in all material respects as of the date hereof with
the same force and effect as if made on such date (except to the extent
that any such representation or warranty relates expressly to an
earlier date).
(b) Each Borrower has the requisite power to execute, deliver
and carry out the terms and provisions of this Agreement.
(c) This Agreement has been duly executed and delivered by the
Borrowers and constitutes the legal, valid and binding obligation of
the Borrowers, and is enforceable against the Borrowers in accordance
with its terms subject (i) as to enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights generally, from
time to time in effect, and (ii) to general principles of equity.
(d) After giving effect to this Agreement, no event has
occurred and is continuing which constitutes or would constitute a
Default or an Event of Default under the Credit Agreement.
3. Conditions Precedent. Notwithstanding any term of provision of this
Agreement to the contrary, Paragraph 1 hereof shall not become effective until
(i) the Agent shall have received counterparts of this Agreement, duly executed
and delivered on behalf of the Borrowers, the Agent and all of the Lenders and
(ii) the Borrowers shall have paid a fee equal to $7,500 to each Lender.
4. Fees and Expenses of Agent. The Borrowers agree to pay all
reasonable fees and out-of-pocket expenses incurred by the Agent in connection
with the preparation and negotiation of this Agreement, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel to the
Agent.
5. References to Agreements. The term "Agreement", "hereof", "herein",
and similar terms as used in the Credit Agreement, and references in the Credit
Agreement and the other Loan Documents to the Credit Agreement, shall mean and
refer to, from and after the effective date of the amendments contained herein
as determined in accordance with Paragraph 3 hereof, the Credit Agreement as
amended by this Agreement.
6. Continued Effectiveness. Nothing herein shall be deemed to be a
waiver of any covenant or agreement contained in, or any Default or Event of
Default under, the Credit Agreement or any of the other Loan Documents, except
as expressly provided for hereby, and each of the parties hereto agrees that, as
amended by this Agreement, all of the covenants and agreements and other
provisions contained in the Credit Agreement and the other Loan Documents shall
remain in full force and effect from and after the date of this Agreement.
7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute a single instrument. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (OTHER THAN THE CONFLICTS OF
LAWS PRINCIPLES THEREOF).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
MILLBROOK DISTRIBUTION SERVICES INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman
THE B. MANISCHEWITZ COMPANY, LLC
By: Xxxxxxx X. Xxxxxxxxx, its managing member
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxxxxx
JPMORGAN CHASE BANK, as Agent and Lender
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Co-Agent and
Lender
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FLEET BUSINESS CREDIT, LLC, as Lender
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Lender
By: /s/ Xxxxxxx XxXxxxxx
--------------------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
LASALLE BUSINESS CREDIT, LLC (successor by
merger to LaSalle Business Credit, Inc.), as Lender
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
